Cases and authorities

PROCEDURE – civil – rule 14.23 Uniform Civil Procedure Rules 2005 - application by defendant to file affidavit – defence filed but not verified by affidavit – failure to subscribe affidavit to defence was an oversight – interests of justice for pleadings to be in correct form – plaintiff given opportunity to make further submissions – leave to file affidavit granted

CORPORATIONS – statutory demand – setting aside statutory demand – affidavit supporting statutory demand – absence of statement as to deponent’s belief that there is no genuine dispute as to debt claimed

PROCEDURE - costs - security for costs - application under Uniform Civil Procedure Rules 2005 (NSW) r 42.21 and Corporations Act 2001 (Cth) s 1335 - whether jurisdiction to make an order for security for costs is established - whether reason to believe that plaintiff company would be unable to pay costs of third defendant if ordered to do so - discretionary considerations - whether company has arguable case - whether application would stultify proceedings - whether any impecuniosity of company results from conduct of defendant - quantum of security.

PROCEDURE - judgment and orders - amending, varying and setting aside - application to set aside judgment to not reinstate company under Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 and 36.16 - where company would be insolvent on reinstatement - where no liquidator could be appointed to company - where no evidence of ability to pay a liquidator's costs - whether established on "sufficient cause" that judgment was given irregularly, illegally or against good faith - whether notice of motion filed within fourteen days after judgment entered - whether appropriate to set aside or vary judgment.

DEFAMATION - defences - contextual truth - form of contextual imputations - requirement for precision

PROCEDURE - judgments and orders - interest on judgments - interest on costs orders - whether an order for interest on costs must be sought at the time when the costs order to which it relates is made - held, it need not - whether evidence is required to support application for interest on costs - held, it is not - relevant discretionary considerations FAMILY LAW AND CHILD WELFARE - the Family Law Act 1975 (Cth) and related legislation - procedure - costs - interest on costs - where proceedings involve cross-vested proceedings under Family Law Act as well as non-cross-vested proceedings - whether an order for interest on costs can be made in respect of a costs order in proceedings under Family Law Act - whether "order for payment of money" in Family Law Act s 117B includes costs order - held, costs order is an order for payment of money and order can be made for interest on such costs.

CONTRACTS - General contractual principles - Contracts Review Act 1980 s 7 - Unjust contracts - Whether the Deed of Guarantee was procedurally unjust - Whether the absence of independent legal or financial advice meant that there was unfairness in the methods used to obtain the Deed of Guarantee GUARANTEE AND INDEMNITY - Construction of Contract - Whether Deed of Guarantee also contained an indemnity - Whether the clause contained an assumption of primary liability - Whether the language contained in a recital was inconsistent with an operative clause - Whether Total Oil Products (Australia) Pty Ltd v Robinson requires that the promisee must have entered into a transaction with a third party at the request of the promisor before an indemnity obligation will arise JUDICIAL REVIEW - Grounds of review - Procedural fairness - Whether interlocutory and procedural rulings denied the appellants the chance to make out the case in their defences - Whether the trial judge wrongly exercised his discretion

EVIDENCE – where relevance dependent upon authenticity – whether authenticity of document proved by mere production – effect of authenticity of document on its relevance – held, document not relevant due to absence of prove of provenance. PROCEDURE – adjournment – where application sought to be made for substitution as plaintiff – where time for proceedings to be determined under Corporations Act, s 459R, expired – whether special circumstances justify extension of time – held, no special circumstances justify extension.

EQUITY - Admiralty - Application by the first and third defendants for separate determination of questions - Claims in negligence, nuisance and breach of statutory duty against owner and master - Master (second defendant) not yet served - Claims under provisions of the Marine Pollution Act and International Convention on Civil Liability for Bunker Oil Pollution on which there have been no previous cases - Limitation issue and an issue of inconsistency under s 109 of the Commonwealth Constitution

EVIDENCE - admissibility - relevance - inferences - whether document that does not name party relevant for the drawing of inferences - business records exclusion to the hearsay rule - judicial discretion to exclude

CRIMINAL LAW - SENTENCE - accessory after the fact to murder - guilty plea entered at first reasonable opportunity - alternate charge to murder - joint trials separated - objective gravity of the offence - delay of investigation and prosecution - accessory in unexpected circumstances - assisting family members - motivations of misguided loyalty or emotional attachment - step towards disposal of a body - sentence imposed no longer than period of time spent in custody - below mid-range of objective criminality - general deterrence - low category for re-offending - absence of serious criminal record

ADMINISTRATIVE LAW - judicial review - decision of the proper officer of the Motor Accidents Authority - refusal of application for further medical assessment under s 62 Motor Accidents Compensation Act 1999 (NSW) - whether decision made according to law - whether failure to take into account relevant material

CRIMINAL LAW - sentence - murder - wounding with intent - armed assault with intent to rob - impaired mental functioning - general deterrence of limited significance - moderate need for specific deterrence - no statutory mitigating factors - background of social disadvantage - less than usual moral culpability

CRIME – subpoena issued by accused – transcript of examinees under Proceeds of Crime Act – public interest immunity – class claim – interests of fair trial warrant order for production.

ADMINISTRATIVE LAW - judicial review - whether Local Court had jurisdiction to hear motion requesting provision of particulars by the prosecution - whether act or omission of a vicariously liable corporate defendant must be charged according to law - natural justice - whether a Court Attendance Notice should be quashed where particulars of act or omission not provided - whether decision to quash a Court Attendance Notice final or interlocutory CRIMINAL LAW - appeal pursuant to s 53 Crimes (Appeal and Review) Act 2001 on a point of law - whether error of law not to particularise act or omission of a vicariously liable corporate defendant in a Court Attendance Notice

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict - not guilty of murder on the grounds of mental illness

PROCEDURE - costs - offer of compromise

PROCEDURE - civil - jurisdiction - transfer of proceedings to Family Court - whether there is a proceeding to transfer - accrued jurisdiction - interests of justice - garnashee order variation

ADMINISTRATIVE LAW - judicial review - error in law - decision maker acted beyond jurisdiction - matter remitted back to the Workers Compensation Commission of NSW WORKERS COMPENSATION - Workers Compensation Commission - hearing loss - limited referral from Registrar to Approved Medical Specialist - Approved Medical Specialist decision appealed to Medical Appeal Panel - employer conceded that it was the last noisy employer - failure to account for concession

EVIDENCE LAW - document sought under subpoena - protected confidence claimed over document - social worker and client relationship - court discretion to prohibit document access - question of harm suffered if access granted - probative value of document - public interest in the confidentiality of protected confidences

CIVIL LAW - solicitor's lien - release of file - solicitors costs - duty of disclosure - requirement that conditional costs agreement be signed by client - equitable charge - agreement to pay costs out of damages in other proceedings - declaration - injunction restraining client from disposing of future fund

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - assessment of whole person impairment by medical assessor - Medical Assessment Guidelines - Permanent Impairment Guidelines - less than average mobility - contralateral uninjured joint - adjustment of assessment of assessed impairment based on uninjured joint - jurisdictional error - requirement to give reasons - directive to provide rationale for decision - pathway of reasoning - whether pathway can be inferred - clarity - whether findings and pathway implicit in reasons - beneficial construction given to reasons of administrative decision maker

CRIMINAL LAW - Murder - Sentence - Joint criminal enterprise - Sentence following trial - Where deceased had engaged in threatening behaviour towards the offender in the period leading up to his death - Where evidence that the offender had expressed a desire to take matters into his own hands CRIMINAL LAW - Murder - Sentence - Where offender maintained innocence - Where no remorse expressed - Where offender not deprived of a finding that he had good prospects of rehabilitation - Necessity to balance factors favouring such prospects against the absence of any expressed remorse

CRIMINAL LAW - summary jurisdiction - offences under Road Transport (General) Act 2005 - offence by company as consignor - breach of load restraint requirements - guilty plea CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - severe risk breach - lower end of range of seriousness - statutory requirements on sentencing - appreciable risk of harm to public safety - risk of harm to road infrastructure - risk of traffic congestion - mitigating factors - lack of relevant previous convictions - purpose of general deterrence - penalty

CRIMINAL LAW - murder; one count - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133 CRIMINAL LAW - murder; one count - defence of mental illness - Mental Health (Forensic Provisions) Act 1900; s 38 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid schizophrenia - whether accused knew what he was doing was wrong - defence established - no point of general principle

CRIMINAL LAW - appeal -sentence - Commonwealth Director of Public Prosecutions; appeal by - two offences - Criminal Code (Cth); s 141.1(1) - bribery of Commonwealth public official - pleaded guilty - head sentences of 3 years and 3 months - wholly concurrent - single non-parole period of 1 year 8 months CRIMINAL LAW - appeal -sentence - whether the sentencing judge erred in imposing wholly concurrent head sentences - principle of totality - material differences between the two offences - particular of manifest inadequacy CRIMINAL LAW - appeal -sentence - whether the sentencing judge erred by imposing a single non-parole period of 1 year and 8 months - whether the single non-parole period was of a severity appropriate in all of the circumstances of the offence - Crimes Act 1914 (Cth); s 16A(1) - particular of manifest inadequacy CRIMINAL LAW - appeal -sentence - whether the discount afforded for assistance given to authorities was excessive - combined discount for guilty plea and assistance of 60% - whether within discretion of sentencing judge - whether reasonably proportionate to criminality involved - assistance of a very high order - combined discount ought not to have exceeded 50% CRIMINAL LAW - appeal - sentence - whether the sentence was manifestly inadequate - whether the sentence was so low as to fall outside the reasonable range of appropriate sentences - whether residual discretion of the Court ought be exercised CRIMINAL LAW - appeal -sentence - resentencing - starting point of 8 years for each offence 50% discount for early guilty plea and assistance to authorities - head sentence 4 years for each offence - single non-parole period of 3 years and 6 months

APPEAL - application for leave - no appearance on behalf of applicant - appeal from refusal to quash decision of Consumer, Trader and Tenancy Tribunal for denial of procedural fairness - no arguable error - decision-making process included opportunity for rehearing by decision-maker - application for rehearing made and rejected - in the circumstances, no utility in adjourning application for leave

MEDICAL PROFESSION - professional misconduct - where doctor prescribed drugs of addiction and restricted substances to de facto partner, a drug-dependent person - where doctor failed to maintain records of prescriptions and consultations and services - where doctor no longer registered as a medical practitioner at time protective orders made - whether Tribunal failed properly to have regard to objective of protecting health and safety of public when making protective orders - Health Practitioner Regulation National Law (NSW) ss 3(2), 3A and 4 - objective requires denunciation of serious misconduct - whether doctor should have been disqualified from being registered - effect of disqualification order on reapplication for registration - Health Practitioner Regulation National Law (NSW) ss 149C(4)(b) and 163B and Pt 7 COSTS - power of Court to order costs in proceedings under Health Practitioner Regulation National Law (NSW) - general rule that costs of proceedings before Medical Tribunal follow the event - where appeal hearing necessary irrespective of formal opposition by doctor - where order sought seemingly based on wrong view of operation of the National Law

APPEAL - error of law by magistrate - whether, applying correct legal principle to facts, only one conclusion open - whether, if more than one conclusion open, only trial court can make finding - discretion to remit - whether in interests of administration of justice - Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 55 CRIMINAL LAW - age of criminal responsibility - child aged 12 when offence occurred - presumption that child between 10 and 14 years not criminally responsible - whether presumption of no criminal responsibility of child rebutted - subjective test to determine whether presumption rebutted

INJUNCTION – Defendant failed to satisfy judgment debt – allegation of transactions lacking bona fides – bankruptcy to render defendant judgment proof – transfer property to partner respondent to motion – mareva injunction continued

CORPORATIONS – external administration – winding up – insolvency – proof of insolvency

EQUITY - trusts and trustees - applications to court for advice - charitable trusts - proceedings against trustees for breach of trust - proceedings raise issues as to terms of the trusts - whether trustees justified in defending allegations of breach of trust insofar as they involve the interpretation and application of constituent documents of trusts COSTS - costs of judicial advice proceedings - whether trustees should be ordered to bear portion of costs - incomplete information provided by trustees

PROCEDURE - costs - indemnity costs - departing from the general rule that costs follow the event - conduct of the parties - whether the defendant's misconduct justifies the award of indemnity costs to the plaintiff - INTEREST - which rate of interest should be applied - principle that where a party found to be in dishonest breach of fiduciary duty, interest may be claimed at a higher rate - whether interest payable at ordinary rate or compound rate. JUDGMENTS - adjustment to judgment sum - Court reserved for further consideration whether a further sum of $50,000 should be included in the judgment sum - plaintiff acknowledges that $11,000 should be deducted from the judgment sum.

INTEREST - pre-judgment interest - Civil Procedure Act 2005, s 100(1) - calculation of interest - date from which pre-judgment interest should run INTEREST - post-judgment interest - Civil Procedure Act 2005, s 101 - calculation of interest - date to which post-judgment interest should run

COSTS - where defendant consents to relief sought and costs of the application to set aside creditor's statutory demand on basis of genuine dispute - whether further proceedings (to resolve said dispute) should be stayed pending payment of costs

COSTS - offer of compromise containing an offer that costs be agreed or assessed valid in accordance with newly amended Rule 20.26(3)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) - offer which provided for a judgment for the plaintiff not ambiguous as s 151Z of the Workers Compensation Act 1987 (NSW) operates of its own force - offer of compromise in recovery proceedings that provided for payment upon the later to occur of specified events consistent with Rule 20.26(8) of the UCPR - offer that provided for time of payment by reference to receipt of authority to receive that was "satisfactory to the defendants" consistent with rules

CRIMINAL - appeal - conviction - whether misdirection in presentation of crown case to jury - no misdirection on factual possibility of push followed by a trip - consistent with an intention to kill - direction consented to - no tactical disadvantage - no miscarriage of justice - misdirection on availability of mental element of reckless indifference to human life - not Crown case - whether miscarriage of justice - significance of the appellant's case that he was not involved in death at all - possibility of jury speculating remote - no objection by counsel CRIMINAL - appeal - evidence - admission of evidence - expert opinion - whether evidence wholly or substantially based on specialised knowledge - process of reasoning involved matters of common knowledge CRIMINAL - appeal - evidence - admission of evidence - expert opinion - whether expert had relevant expertise - whether expertise from study and experience - no details of how investigations conducted equipped expert to give evidence in present case - publications not tendered - titles of publications insufficient evidence of expertise from study and experience APPEAL - criminal - whether notwithstanding appellant's success appeal should be dismissed - application of proviso - 6(1) Criminal Appeal Act 1912 (NSW) - whether no substantial miscarriage of justice - consideration of importance of expert evidence - Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant APPEAL - criminal - fresh evidence - whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence - could have been discovered by reasonable due diligence - no miscarriage of justice - previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence CRIMINAL - appeal - conviction - no error in direction on use of evidence as both tendency evidence and for motive - reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved

PRACTICE - stay pending appeal - whether grounds reasonably arguable - whether balance of convenience supports a stay - stay granted

INSURANCE - fire insurance - construction of insuring clause - onus of proof - where insurance policy does not cover loss caused by fire deliberately lit - whether appellant insured has onus of proving fire not deliberately lit

PRACTICE AND PROCEDURE - grant of certificate under the Suitors' Fund Act 1951 (NSW) - an application for a certificate is a fresh proceeding - no reason not to issue the certificate

APPEAL - application to amend pleadings - whether the primary judge erred in the exercise of his discretion in dismissing an application to amend pleadings - whether the primary judge made material errors of fact APPEAL - stay of proceedings - whether the primary judge erred in failing to grant a stay application - whether the primary judge made material errors of fact

EQUITY - estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings - whether previous declarations and orders are in rem - whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) - whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES - terms of the trust - charitable trusts - proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church - whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register - whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY - whether relief should be denied on a discretionary basis - whether plaintiffs have clean hands - whether false evidence given in these proceedings and in earlier proceedings - whether false evidence directly and immediately related to equity sought

COSTS - Local Court - Calderbank Offer - application of Practice Note

COSTS - departure from usual order in cases concerning taking of accounts of partnership following dissolution - application for costs on indemnity basis - offer of compromise - offer made by plaintiff - refusal of offer by defendant - entitlement for costs to be assessed on indemnity basis - Uniform Civil Procedure r 42(2) - order for costs on ordinary basis up to date of offer of compromise and thereafter on indemnity basis INTEREST - pre-judgment interest - whether pre-judgment interest payable at rate specified in Civil Procedure Act 2005 (NSW) s 100 or rate specified in Partnership Act 1892 (NSW) s 24 - held pre-judgment interest payable at rate specified in Civil Procedure Act 2005 (NSW)

EQUITY - remedies - Specific Performance - where order for specific performance already made by Court - where order for specific performance not complied with - general principles as to specific performance - whether Court can give further and supplementary relief after judgement has been given - whether Court can grant compensation where value of property increased significantly since date of contract - whether Court should order that interest be paid where purchaser in exclusive possession since date fixed for completion of the contract

PROCEDURE - jurisdiction of the courts - application to transfer proceedings to Supreme Court of Queensland - whether it is in the interests of justice - what is the most appropriate forum

COSTS - discretion to award pre-judgment interest under s 100 of the Civil Procedure Act - clarification and variation of orders previously made in respect of pre-judgment interest

TORTS - negligence - plaintiff failed to prove case - not established how or why he fell down a flight of stairs in bookshop - no negligent act or omission attributable to the defendants - plaintiff not credible witness DAMAGES - economic loss relatively modest - plaintiff able to travel overseas not long after fall - no real prospects of becoming a school principal WORKERS' COMPENSATION - workers compensation insurer obliged to establish that compensation paid was referable to the putative tortious incident - not sufficient that it allocated the expense to an earlier claim where there was a subsequent work-related injury to same part of body not causally related to subject incident - effect of Determination of Workers Compensation Commission

CRIMINAL LAW - application for criminal assets restraining order